When Common Sense Is Unconstitutional

Posted on Jun 26, 2008

By Eugene Robinson

Few landmark Supreme Court rulings have been so widely predicted as Thursday’s decision striking down the District of Columbia’s ban on handguns. The mere fact that the court agreed to hear the case was a pretty good indication that the justices were itching to make some kind of big statement about the Second Amendment. Questions from the bench during oral arguments in March left little doubt as to which way the wind was blowing.

This case, for me, is one of those uncomfortable situations where my honest opinion is not the one I’d desperately like to be able to argue. As much as I abhor the possible real-word impact of the ruling, I fear that it’s probably right.

The practical benefits of effective gun control are obvious: If there are fewer guns there are fewer shootings, and fewer funerals. As everyone knows, in the District of Columbia—and in just about every city in the nation, big or small—there are far too many funerals. The handgun is the weapon of choice in keeping the U.S. homicide rate at a level that the rest of the civilized world finds incomprehensible and appalling.

I realize that the now-defunct D.C. law was unusually comprehensive and restrictive, and thus, in the legal sense, offered a bull’s-eye for the pro-gun lobby. I also know that the law was easy to attack on grounds of efficacy: Given all the handgun killings in the city, was the ban really having any beneficial impact at all?

But come on, it’s not as if the law was making gun violence in the city any worse—and it’s not as if striking down the law and perhaps adding hundreds or thousands of weapons to the city will make things any better. The law was flawed, but it was a lot better than nothing.

I’d like to be able to thunder about the injustice committed by an activist, arch-conservative Supreme Court that seeks to return our jurisprudence to the 18th century. I will, almost certainly, about some future outrage. But this time, I can’t.

The big problem, for me, is the clarity of the Second Amendment’s guarantee of the “right of the people to keep and bear arms.” The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.

I’ve never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written—and give it such pride of place, the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control—but also a one-time professor of constitutional law—has said he believes the amendment confers an individual right to gun ownership.

And even if the Second Amendment was meant to refer to state militias, where did the Founders intend for the militias’ weapons to be stored? In the homes of the volunteers is my guess.

More broadly, I’ve always had trouble believing that a bunch of radicals who had just overthrown their British oppressors would tolerate any arrangement in which government had a monopoly on the instruments of deadly force. I don’t mean to sound like some kind of backwoods survivalist, but I think the revolutionaries who founded this nation believed in guns.

Did they believe in assault weapons? Of course not. Would they be appalled that drug gangs are often better armed than the police? Of course they would, and surely they’d want to do something about it.

I believe the Constitution is a living document that has to be seen in light of the times. I believe the Supreme Court, in Roe v. Wade, was right to infer an implicit right to privacy, even though no such thing is spelled out. I think the idea that the Founders’ “original intent” should govern every interpretation of the Constitution is loony—as if men who wrote with quill pens could somehow devise a blueprint for regulating the Internet.

But I also believe that if the Constitution says yes, you can’t just blithely pretend it says no. Thursday’s decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment’s guarantee. If not, then the way to fix the Constitution is to amend it—not ignore it.